State v. Minyoung , 2012 Ohio 411 ( 2012 )

[Cite as State v. Minyoung, 2012-Ohio-411.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
VAN WERT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 15-11-11
v.
JOSH MINYOUNG, OPINION
DEFENDANT-APPELLANT.
Appeal from Van Wert County Common Pleas Court
Trial Court No. CR-10-12-191
Judgment Affirmed
Date of Decision: February 6, 2012
APPEARANCES:
John E. Hatcher for Appellant
Martin D. Burchfield for Appellee
Case No. 15-11-11
PRESTON, J.
{¶1} Defendant-appellant, Josh Minyoung (hereinafter “Minyoung”),
appeals the Van Wert County Court of Common Pleas’ judgment of conviction
and sentence following Minyoung’s plea of no contest to one count of possession
of drugs. Minyoung contends the trial court erred when it denied his motion to
suppress. For the reasons that follow, we affirm.
{¶2} On December 7, 2010, Sergeant Black received a Crime Stoppers tip
that Minyoung would be returning to Van Wert, Ohio later that evening from Fort
Wayne, Indiana, where he had purchased prescription narcotics to sell in Van
Wert. (March 10, 2011 Tr. at 22). The tip provided Minyoung’s name, a
description of the vehicle, the license plate number, the approximate time when
Minyoung would return to Van Wert, and that Minyoung would be driving on U.S.
Route 30. (Id. at 22-23). A reliable confidential informant confirmed the Crime
Stoppers tip. (Id. at 23).
{¶3} At approximately 10:00 p.m. that evening, Trooper Coil observed an
extremely loud, dark colored vehicle driving on U.S. Route 30. (Id. at 5-6).
Trooper Coil followed the vehicle, intending to stop the driver because of the loud
exhaust. (Id. at 6). When Trooper Coil ran the vehicle’s license plate information,
he discovered it was the vehicle from the Crime Stoppers tip. (Id. at 7). Trooper
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Coil contacted Sergeant Black to request that he bring the K-9 unit to the scene.
(Id.). Trooper Watson also joined Trooper Coil for the stop. (Id. at 7-8).
{¶4} Sergeant Black walked his K-9 around the vehicle while Trooper Coil
spoke with Minyoung, the driver, who was still seated in his vehicle. (Id. at 11).
Minyoung admitted there was a problem with the exhaust. (Id.). During their
conversation, the K-9 alerted to the vehicle, indicating there were drugs inside. (Id.
at 12). Trooper Coil removed Minyoung from the vehicle while Sergeant Black
removed the passenger. (Id. at 12-13). Officer Coil patted down Minyoung for
weapons and Sergeant Black patted down the passenger. (Id.). During the pat-
down, Trooper Coil asked Minyoung to remove his shoes. (Id.). Minyoung took a
small baggy of marijuana out of his right shoe and gave it to Trooper Coil. (Id.).
Trooper Coil again asked Minyoung to remove his shoes. (Id. at 14). Minyoung
complied, revealing a bag of pills in his left shoe. (Id. at 14-15). Sergeant Black
then searched the passenger’s shoes and the vehicle, but did not find any other
contraband. (Id. at 15, 38). Sergeant Black and Trooper Coil determined the pills
were Dilaudid, a Schedule II substance, and arrested Minyoung. (Id. at 16-17).
{¶5} On July 13, 2011, Minyoung was indicted for possession of drugs in
violation of R.C. 2925.11(C)(1)(b), a felony of the third degree. (Doc. No. 2).
Minyoung filed a motion to suppress any evidence obtained from the stop on the
grounds that it was an illegal search and seizure. (Doc. No. 17). The Van Wert
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County Court of Common Pleas held a hearing on the motion to suppress on
March 10, 2011. (March 10, 2011 Tr. at 1). The court denied Minyoung’s motion
to suppress on May 3, 2011. (Doc. No. 22).
{¶6} On May 13, 2011, Minyoung entered a plea of no contest to
possession of drugs in violation of R.C. 2925.11(C)(1)(b), a felony of the third
degree. (Doc. No. 25). The trial court sentenced Minyoung to one year
imprisonment on June 29, 2011. (Doc. No. 28).
{¶7} On July 28, 2011, Minyoung filed a notice of appeal and now raises
one assignment of error.
ASSIGNMENT OF ERROR NO. I
WHETHER THE TRIAL COURT ERRED IN FAILING TO
GRANT DEFENDANT-APPELLANT’S MOTION TO
SUPPRESS
{¶8} In his single assignment of error, Minyoung argues the trial court
erred when it denied his motion to suppress for two reasons. First, Minyoung
contends Trooper Coil and Sergeant Black did not have lawful grounds to detain
him beyond the initial traffic stop. Minyoung argues the continued detention was
a “fishing expedition” to find evidence of a drug crime. Secondly, Minyoung
contends Trooper Coil did not have legal grounds to search his shoe. Minyoung
argues the request to remove his shoe went beyond the scope of a pat-down,
constituting an illegal search. In response, the State contends Trooper Coil
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lawfully detained Minyoung and performed a pat-down for weapons. The State
also argues Officer Coil’s actions were lawful because he had probable cause to
search Minyoung. We will address each argument in turn.
{¶9} A review of the denial of a motion to suppress involves mixed
questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 797 N.E.2d 71, ¶
8, citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). At a
suppression hearing, the trial court assumes the role of trier of fact and, as such, is
in the best position to evaluate the evidence and the credibility of witnesses. Id.{¶10} When reviewing a ruling on a motion to suppress, deference is given
to the trial court’s findings of fact so long as they are supported by competent,
credible evidence. Burnside at ¶ 8. With respect to the trial court’s conclusions of
law, however, our standard of review is de novo and we must decide whether the
facts satisfy the applicable legal standard. State v. McNamara, 124 Ohio App.3d
706, 710, 707 N.E.2d 539 (4th Dist. 1997).
1. Detention
{¶11} We will first address the issue of Minyoung’s continued detention.
Minyoung argues Officer Coil did not have any lawful grounds to continue to
detain him after the initial stop for a traffic violation.
{¶12} The Fourth Amendment of the United States Constitution protects
citizens from unreasonable governmental searches and seizures. United States v.
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Jacobsen, 466 U.S. 109, 112, 104 S.Ct. 1652, 80 L.E.2d 85 (1984). Generally,
warrantless searches and seizures are per se unreasonable. Katz v. United States,
389 U.S. 347, 357, 88 S.Ct. 507, 19 L.E.2d 576 (1967). Once the defendant has
established that he was subjected to a warrantless search or seizure, the burden
shifts to the state to prove the search or seizure met one of the exceptions to the
warrant requirement. Maumee v. Weisner, 87 Ohio St.3d 295, 297, 720 N.E.2d 507(1999).
{¶13} “It is axiomatic that where there is a reasonable and articulable
suspicion to believe that a motor vehicle or its occupants are in violation of the
law, stopping the vehicle and detaining its occupants will not violate the
Constitution.” State v. Rusnak, 120 Ohio App.3d 24, 27, 696 N.E.2d 633 (6th Dist.
1997), citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.E.2d
660 (1979). An officer may detain an individual during an investigative stop for
the length of time required to run a computer check on the individual’s license,
registration, and vehicle plates, and to issue a citation or warning. Prouse at 659.
{¶14} If the officer has lawfully detained the vehicle, using a trained
narcotics dog to sniff the vehicle’s exterior does not constitute a search in
violation of the individual’s Fourth Amendment rights. Rusnak at 28, citing State
v. Carlson, 102 Ohio App.3d 585, 594, 657 N.E.2d 591 (9th Dist. 1995). An
officer does not need reasonable suspicion of drug related activity before
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subjecting the lawfully detained vehicle to a canine sniff. Id. The officer may
lengthen the time of the stop if the officer discovers additional facts leading to a
reasonable inference of criminal activity. State v. Williams, 9th Dist. No.
09CA009679, 2010-Ohio-3667, ¶ 15. “[O]nce a trained drug dog alerts to the
odor of drugs from a lawfully detained vehicle, an officer has probable cause to
search the vehicle for contraband.” Carlson at 600.
{¶15} In the present case, Trooper Coil had lawful grounds to detain
Minyoung after the initial traffic stop. The trial court found that Trooper Coil
“decided to pull the vehicle over for a traffic violation regarding the loud exhaust.”
(Doc. No. 22). Trooper Coil then ran the plates and discovered the vehicle
matched the information for a potential drug offense. (Id.). Thus, Trooper Coil
lawfully detained Minyoung for an investigative stop regarding his traffic
violation and potential drug activity. Sergeant Black walked his K-9 unit around
the vehicle while Trooper Coil discussed the loud exhaust with Minyoung. (March
11, 2011 Tr. at 11). At that time, the K-9 unit alerted to drugs in the vehicle. (Doc.
No. 22). Trooper Coil did not extend the initial investigatory stop beyond the time
required to run the computer check and discuss the violation with the driver
because the K-9 sniff and alert occurred before Trooper Coil had completed the
initial investigation. Furthermore, the K-9 alert provided additional facts leading
to the reasonable inference that Minyoung was engaged in criminal activity.
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Consequently, Trooper Coil had lawful grounds to continue to detain Minyoung
for the purpose of investigating a possible drug crime. We cannot find that the
trial court erred in denying Minyoung’s motion to suppress based on the length of
his detention.
2. Pat-Down
{¶16} Minyoung also argues Officer Coil’s request that Minyoung remove
his shoes was outside the scope of a pat-down, constituting an illegal search in
violation of Minyoung’s Fourth Amendment rights.
{¶17} An officer may pat-down an individual for weapons during a traffic
stop if the officer has reason to believe the individual may be armed and
dangerous. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.E.2d 889 (1968).
The officer does not need probable cause to arrest the individual for a crime before
the officer can pat-down the person for weapons. Id. The purpose of the pat-down
is to search for weapons that could harm the officer during the stop, not to search
for evidence of a crime. State v. Kelley, 4th Dist. No. 10CA3182, 2011-Ohio-
3545, ¶ 18, citing State v. Evans, 67 Ohio St.3d 405, 408, 618 N.E.2d 162 (1993).
As a result, the pat-down is limited in scope “to an intrusion reasonably designed
to discover guns, knives, clubs, or other hidden instruments for the assault of the
police officer.” Terry at 29. The officer’s right to frisk an individual is virtually
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automatic when the person is suspected of a crime, such as drug trafficking, where
the individual is likely to be armed. Kelly at ¶ 19, citing Evans at 413.
{¶18} The trial court found that Trooper Coil took Minyoung to the back of
his vehicle to pat him down for officer safety. (Doc. No. 22). Trooper Coil
testified, “I went ahead and started the search* * *it is pretty much the same way
that I use all the time. I go from the top down. I got on to his two shoes, I asked
him to take off his shoes.” (March 11, 2011 Tr. at 13). Trooper Coil also testified
that he often has individuals take their shoes off when he does a search for officer
safety, stating, “I generally, I mean depending on the level of threat, I will. I have
many times have made them take their shoes off.” (Id. at 39). Trooper Coil further
testified that after he asked Minyoung to remove his shoes, “he kind of shrugged
and grabbed the small baggy of marijuana out of his right shoe and he gave it to
me.” (Id. at 13). According to Trooper Coil, he then had Minyoung remove both
of his shoes and discovered a bag of Dilaudid pills in the left shoe. (Id. at 14-16).
In response to a question regarding the purpose of the search, Trooper Coil stated,
“Basically I was looking for weapons and contraband.” Id. at 39. Trooper Coil
further testified, “I thought that with as much as I had as per the informant and the
probable cause with the search of the dog to go ahead and do a more detailed
search.” (Id.).
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{¶19} The trial court found that Trooper Coil had Minyoung remove his
shoes “as he normally does in this type of search.” (Doc. No. 22). The trial court
also found that Minyoung removed the marijuana from his right shoe prior to
removing the shoe and that Trooper Coil discovered the Dilaudid pills when
Minyoung removed his left shoe. (Id.). The trial court held, “Those circumstances
taken into account, as a whole, justified the search that the officers made which led
to the discovery of the illegal substance on the Defendant’s person.” (Id.).
{¶20} We agree with the State that Trooper Coil had the right to pat-down
Minyoung for weapons, but, in this case, we cannot find that requiring Minyoung
to remove his shoes was part of the pat-down. Based on the Crime Stoppers tip,
the information from the confidential informant, and the K-9 unit’s alert, Trooper
Coil had reason to suspect Minyoung possessed drugs. Since the right to frisk an
individual suspected of drug trafficking is “virtually automatic,” Trooper Coil had
the right to pat-down Minyoung for purposes of officer safety. See Kelly at ¶ 19.
Trooper Coil’s pat-down could include places reasonably expected to contain
guns, knives, or other weapons that may harm an officer. See Terry at 29. Thus,
the pat-down of Minyoung was appropriate because weapons could have easily
been concealed beneath his clothing. However, we cannot find any evidence in
the record providing Trooper Coil with a reason to suspect Minyoung had
weapons hidden in his shoes. Trooper Coil did not testify that Minyoung had
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difficulty walking, standing, or exhibited other clues to make Trooper Coil believe
it was necessary to check Minyoung’s shoes for purposes of officer safety.
{¶21} Furthermore, “an officer’s statement regarding his intent in
conducting a search carries great weight in determining whether a search was a
weapons patdown search or a full scale search.” Kelley, 4th Dist. No. 10CA3182,
2011-Ohio-3545, at ¶ 20. Trooper Coil testified that he was looking for weapons
and contraband while searching Minyoung. (March 11, 2011 Tr. at 39). Trooper
Coil also testified that he believed he had probable cause to do a more “detailed
search.” (Id.). A search for evidence is outside the scope of a pat-down for
purposes of officer safety. Kelley at ¶ 18. Because Officer Coil testified that he
believed he had probable cause to perform a more thorough search and was
looking for contraband in addition to weapons, we cannot find that Officer Coil
discovered the Dilaudid pills pursuant to a lawful pat-down.
3. Probable Cause
{¶22} The State argues that even if the search of Minyoung’s shoes was
inappropriate as part of the pat-down, Officer Coil still had probable cause to
search Minyoung based on the totality of the circumstances. We agree.
{¶23} A search or seizure is reasonable under the Fourth Amendment if it is
based upon probable cause and executed pursuant to a warrant. Katz, 389 U.S. 347at 357. If an officer has probable cause, he must then obtain a warrant prior to the
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search or seizure unless an exception to the warrant requirement applies. State v.
Moore, 90 Ohio St.3d 47, 49, 734 N.E.2d 804 (2000). “‘Probable cause exists if
the facts and circumstances known to the officer warrant a prudent man in
believing that [an] offense has been committed.’” Kelley at ¶ 22, quoting Henry v.
United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.E.2d 134 (1959). A court must
review the totality of the circumstances known to the officer at the time of the
search to determine if the officer had probable cause to conduct the search. Kelly
at ¶ 23, citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.E.2d 142 (1964).
The officer must have sufficient objective facts to justify a magistrate to issue a
warrant. Id. “Thus, the officer must possess sufficient facts from a reasonably
trustworthy source that a search will uncover evidence of a crime.” Id. An officer
may gain this information from an informant’s tip. Id. at ¶ 25.
***Police have probable cause to conduct a search for
contraband when detailed information provided to them by a
confidential but reliable informant is subsequently
corroborated, in some significant combination, with respect to
the name or physical description of a suspect, the location of the
illegal sale, the time of the sale, the description of the automobile
driven by the suspect or the car’s license plate numbers.
Id., quoting State v. Walker, 10th Dist. No. 97APA09-1219 (July 28, 1998). If an
officer has probable cause, the officer may conduct a search without a warrant if
an exception to the warrant requirement exists. Moore at 52. The danger that
evidence will be lost or destroyed if the officer does not immediately conduct a
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search is one such exception. Id. “Because marijuana and other narcotics are
easily and quickly hidden or destroyed, a warrantless search may be justified to
preserve evidence.” Id.
{¶24} Officer Coil had probable cause and an exception to the warrant
requirement justifying a warrantless search of Minyoung. Officer Coil had
probable cause based on the Crime Stoppers tip, the corroboration of the tip by the
confidential informant, and the K-9 unit’s alert. The Crime Stoppers tip provided
detailed information regarding Minyoung’s drug activity including his name,
where he was driving from, his intended destination, the route he would be using,
the approximate time he would be arriving in Van Wert, a description of the
vehicle, and the vehicle’s license plate number. (March 11, 2011 Tr. at 22-23). A
reliable confidential informant then confirmed this information. (Id. at 23).
Finally, the K-9 unit alerted to drugs in the vehicle while Minyoung was inside the
car. (Id. at 12). Based on the totality of the circumstances, Officer Coil had
detailed information from two sources that Minyoung was engaged in drug
activity at the time of the stop. The K-9 unit’s alert then provided an additional
reason for Officer Coil to suspect Minyoung was currently in possession of illegal
drugs. Since Officer Coil had sufficient objective facts to believe Minyoung was
presently engaged in criminal activity, he had probable cause to conduct a search.
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{¶25} Officer Coil also had an exception to the warrant requirement
justifying a warrantless search. Officer Coil reasonably suspected Minyoung was
transporting narcotics to sell in Van Wert. “Once a law enforcement officer has
probable cause to believe that a vehicle contains contraband, he or she may search
a validly stopped motor vehicle based upon the well-established automobile
exception to the warrant requirement.” Moore at 51. Thus, the search of
Minyoung’s vehicle did not violate his Fourth Amendment rights. However,
Officer Coil searched Minyoung’s person prior to the search of the vehicle and the
search was not justified as incident to his arrest. Consequently, the search must
meet an exception to the warrant requirement justifying the intrusion or any
resulting evidence should be suppressed. Id. at 52. The Supreme Court of Ohio
has recognized that narcotics can be easily hidden and destroyed. Id.
Consequently, an officer may be justified in conducting a warrantless search of an
individual suspected of possessing drugs prior to searching the vehicle to prevent
the potential destruction of evidence. Id. In this case, Officer Coil was justified in
conducting a warrantless search of Minyoung’s shoes because Officer Coil had
sufficient facts supporting his belief that Minyoung was presently transporting
drugs, and Minyoung could have hidden or destroyed the drugs if not immediately
searched. We hold that Officer Coil was justified in conducting a warrantless
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search of Minyoung because he had probable cause and the search met an
exception to the warrant requirement.
{¶26} Minyoung’s assignment of error is, therefore, overruled.
{¶27} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS, P.J. and WILLAMOWSKI, J., concur.
/jlr
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